This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Tuesday, July 11, 2017

While there is no single antidote for this winter of discontent, the way government governs is a contributing factor.

The government tells us that belief in democracy is a shared Australian value and as part of a new approach to citizenship for those who seek to join us, that newcomers will be tested to demonstrate their commitment.

Calls for reformpropose steps to make decision-making more transparent and politicians more accountable for their actions; for politicians to get serious about cleaning up public life; and for more collaboration between government and citizens in policymaking, regulation and operational delivery.

Submission of Australia’s first OGP National Action Plan

In a development that has received little public attention the Turnbull government has committed to a package of reforms that represent a small step in this direction.

The OGP is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

In theforewordto the Australian plan, Minister for Finance Senator Cormann said the government:

understands the importance in a democracy of open government to a strong and fair society. Open government also fundamentally supports the Government’s goal for Australia to become a more agile, innovative and collaborative nation…

The reform measures to which the government is committed include:

better legislative protections for whistle blowers that report misconduct in the tax and corporate sectors;

better access to government-held information and data, with release of high value datasets and reforms to our information access laws;

strengthening the national integrity and anti corruption framework;

undertaking an inquiry into political donations and other electoral matters; and

improving the way the Commonwealth engages with the public on policy development, service delivery and decision-making..

The plan represents a start, not the final word in delivering more open government:

The Government recognises it must keep lifting the bar to ensure we meet the high expectations of Australians, who rightly expect Australia to be a leader in promoting transparency, integrity and public engagement, and to be at the forefront of technological innovation.

The OGP requires more than words.

The rules of the OGP stipulate that an independent review of the process to develop the plan is required as well as a report on the outcomes and results. And a new plan must be developed every two years.

The Open Government Partnership Explained

The OGP was launched in September 2011 when the eight founding governments (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the United States) endorsed the Open Government Declaration, and announced their country action plans.

Since 2011, 67 other governments have joined the Partnership.

Participating countries endorse a high-levelOpen Government Declarationthat requires a shift in norms and culture to ensure genuine dialogue and collaboration between governments and civil society.

Members are committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other international instruments related to human rights and good governance. Specifically, toincrease the availability of information about governmental activities,support civic participation, implement the highest standards of professional integrity, andincrease access to new technologies for openness and accountability.

The Declaration acknowledges that open government is a process that requires ongoing and sustained commitment:

We commit to reporting publicly on actions undertaken to realize these principles, to consulting with the public on their implementation, and to updating our commitments in light of new challenges and opportunities.

In addition to domestic reforms, members pledge to lead by example and contribute to advancing open government in other countries:

We commit to espouse these principles in our international engagement, and work to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government.

In notifying the OGP of Australia’s membership, Prime Minister Turnbullstated“the goals of the OGP directly align with Australia’s long proud tradition of open transparent government.”

Australian involvement

Australia finally joined the OGP in November 2015. Getting to that point involved a long, on again, off again journey.

Australia had been invited to join the OGP as a founding member in August 2011, by the then United States Secretary of State, Hillary Clinton. .

It failed to respond to that invitation and showed little enthusiasm for the cause until May 2013 when following strong representation within from Senator John Faulkner and from without by civil society organisations, then Attorney General Mark Dreyfus announced Australia’s intention to join.

Little was done to give effect to the decision before the election in September 2013.

Thereafter Prime Minister Abbott showed no enthusiasm whatsoever. The Abbott government announcement in its 2014 Budget that the Office of Australian Information Commissioner was to be abolished was directly inconsistent with a commitment to broaden and deepen open government. Excessive secrecy seemed a hallmark of the Abbott era.

Minister for Finance Cormann told Estimates hearings on a number of occasions in 2014-2015 that membership of the OGP was under consideration. These assurances were reminiscent of the Yes Minister script where Sir Humphrey explained this meant ‘we have lost the file.’ According to Sir Humphrey the phrase ‘under consideration’ can be contrasted to ‘active consideration’, which meant ‘we are trying to find it.’

A Freedom of information application made to Department of Finance in 2015revealedthe Prime Minister’s Office had instructed the Minister and agencies to take OGP matters no further until the full ramifications of the type of initiatives that might need to be undertaken once Australia joined the Partnership were cleared with the Prime Minister.

A change of leadership brought a change in perspective.

As Minister for Communications, Malcolm Turnbull had spoken often about the digital information age, the power of open data and had established the Digital Transformation Office to lead on new ways to deliver government services.

When he assumed office as Prime Minister, responsibility for open government-related matters was transferred to his department.

In November 2015 he announced Australia would proceed with membership of the OGP.

Australia’s National Action Plan commitments

Australia’s first National Action Plancontains 15 commitmentsacross a broad range of issues concerning open government, anti-corruption, public integrity, and citizen participation.

The breadth and scope of the commitments is welcome—a far cry fromthe limited vision shownby government when public consultation began.

There are some disappointments, particularly the limited commitment to what are high priorities for civil society- political donations reform and gaps in the national integrity framework, particularly the absence of a broad based anti-corruption commission.

Nevertheless, the commitments that have been made are important. For example, one on the ‘high hopes’ list of open government advocates is the commitment to develop “Information management and access laws fit for the 21st Century”:

Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practice.

Australian freedom of information (FOI) law and practice is out of date and not up to international standards. In the Centre for Law and Democracy Right to Information Rating survey, the the CommonwealthFreedom of Information Act 1982(FOI Act)received 83 points out of 150in an assessment of global laws, placing it 58 of 111 laws surveyed.

The internet has had a dramatic effect on public expectations concerning access to information.

First generation FOI laws are based on a process of lodging of an application, a delay while the application is considered, and a decision to grant access to all or some requested information often on condition of payment of a fee.

For those who consult Dr. Google many times a day, this must seem arcane. In some Australian jurisdictions, for exampleNew South WalesandSouth Australia, FOI applications are still only accepted if received by post or delivered at the relevant agency in person by the applicant, accompanied by a cheque or money order.

Second generation laws have included important advances, prescribing more extensive obligations to proactively publish certain government information. There is still a long way to go to build on this in many countries, including Australia where reforms at the Commonwealth level in 2010 were something of a start in moving in this direction.

Third generation ideas are emerging. Information commissioners in Canada and Scotland have talked about “Transparency by Design.” Record management professionals raise the idea that new records management systems should include a public interface that would provide more and better information about government information holdings to encourage and facilitate requests for access.

Need for a comprehensive review of access regimes in Australia

Before we get to new frameworks however, a comprehensive review is needed of what we have learned from 35 years experience since the commencement of the Commonwealth FOI Act in 1982.

The importance of culture change and ongoing leadership is at the top of the list.

Any review should include but not be limited to the recommendations of thestatutory reviewby Dr Allan Hawke in 2012-13 of the FOI Act and theAustralian Information Commissioner Act 2010(Cth).

None of Dr Hawke’s recommendations, including the need for a comprehensive review of the kind he was unable to undertake, received a government response.

The Hawke review sits alongside many other recommendations put forward over the years by the Australian Law Reform Commission, information commissioners, parliamentary committees and experts for improvement in law, policy and practice, but not acted upon

Conclusion

Action to implement commitments made in the initial OGP National Action Plan is now underway under the watchful eye of anInterim Working Groupof government and non government representatives established by Department of Prime Minister and Cabinet in August 2016.

This interim group will be replaced in July by a permanent body, theOpen Government Forum, to include up to 16 members.

The OGP Independent Reviewer, Daniel Stewart of the Australian National University, is yet to report on the adequacy of government efforts to engage with civil society in development of the first plan, and will report again in 2018 on outcomes and results.

Open government is a journey not a destination.

Australian membership of the OGP provides an invaluable road map for the journey.

Peter Timminsis Interim Convener of the Australian Open Government Partnership Network and a member of the Interim Working Group established by Department of Prime Minister and Cabinet.

Suggested citation: Peter Timmins ‘Australia’s commitment to open government reform‘ on AUSPUBLAW (11 July 2017) <https://auspublaw.org/2017/07/australias-commitment-to-open-government-reform/>

Thursday, June 22, 2017

Attorney General Mark Speakman has announced the proposed appointment of Samantha Gavel as NSW Privacy Commissioner. The Joint Parliamentary Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission gets to confirm the appointment... or otherwise.

And the good news, many years late, is that the government will make the position full time.

The Commissioner has been part-time since the first appointment in 1999 and for long periods there was an Acting Commissioner, including 2003-07 and 2009-2011. “Ms Gavel is a leader in privacy protection who is currently the National Health Practitioner Ombudsman and Privacy Commissioner, and was previously the Private Health Insurance Ombudsman for six years,” Mr Speakman said in a Media release

Paris Cowan in IT News in February recounted how privacy regulation everywhere around the country is under resourced.

Budgeted expenditure for the Information and Privacy Commission in 2017-18 is $5.6 million, a 1.3% reduction.

Looks like expenditure on a full time commissioner will involve a snip elsewhere.

Wednesday, June 14, 2017

The recent jailing
of British breast surgeon Ian Paterson after performing multiple
unnecessary operations has highlighted the issue of hospital safety.

Paterson’s unnecessary surgeries included some performed in private hospitals, which prompted UK doctors
to call for private hospitals to report similar patient safety data as
public hospitals, including unexpected deaths and serious injuries.

This
example shows how little we know about patient safety and quality in
our private hospitals, not only in the UK, but also in Australia.

The
Australian Institute of Health and Welfare is provided with data about
every patient treated in an Australian hospital, both public and
private. Using that data, you can look up measures of safety and
quality, as well as emergency department performances. You can compare
public hospitals on all the performance measures, but private hospitals
are excluded from the performance reports. Further reading: Which are better, public or private hospitals?
Another good source is the New South Wales Bureau of Health Information, which allows you to compare information about the safety and quality of public hospitals in NSW. Private hospitals are not included.

Private hospitals are not all the same

Private health insurance allows you to choose
your treating doctor and the hospital at which you’re treated. But how
do you choose the right hospital, or the safest one? As our research
shows, not all private hospitals in Australia are equal.

In 2009,
the Australian Health Insurance Association (now called Private
Healthcare Australia) asked me and my colleagues to look at the outcomes
of care in private hospitals. We looked at death rates and the numbers
of people who died during their stay in hospital, and a range of other
safety and quality outcomes.

We were given access to three years
of detailed data from a national sample of patients treated in 58
private hospitals. We did not know the names of the hospitals, nor
patients’ names.

Our research showed some private hospitals were safer than others, but from the data we analysed we couldn’t tell which.from www.shutterstock.com
Many kinds of hospital outcomes, such as the likelihood of
dying in hospital, or contracting a serious infection, are influenced by
factors such as a patient’s age, and the range of conditions that
brought them to hospital. We tried to take those factors into account
and published our findings on the Private Healthcare Australia website.

We
found a group of hospitals that, each year, seemed to have much lower
death rates than average for all the private hospitals. Those, or other
hospitals, also had lower than average rates of a variety of non-fatal
incidents. There was also a group of hospitals that each year had higher
than average death and adverse event rates. The greater than average
death rate group included hospitals where death rates were consistently
up to 90% higher than average.

If you are choosing a hospital,
you’d want to know which hospital was which. But that information is not
publicly available. You’d also want to know if there were more recent
statistics, but there is no reported follow-up study. Without better
public access to such facts and figures, we’re still in the dark.

And in England, it is easy to look up the Care Quality Commission’s detailed reports
about public and private hospitals. The reports provide an easy to
read, “blow-by-blow” account of their inspections of all types of
hospitals, and make a variety of judgements on what they find. They are
backed up by detailed statistical reports, but only for public
hospitals.

Why don’t we do this in Australia?

A representative from the Office of the Australian Information Commissioner
tells me that, provided individuals are not identified, there would be
no breach of privacy if private hospital safety and quality data was
made public. And no-one from a state health department has yet been able
to say whether such a publication would be against any law.

over 12.9 million Australians who choose better quality health care services and to put their health care needs first.

Private
hospitals and private health insurers are in competition with each
other for the 12 million or more Australians covered by some form of
health insurance. So, it is in their commercial interests to avoid bad
publicity.

Surely
it is the role of both state and commonwealth governments to balance
these commercial interests against the public’s right to know which
hospital is providing safe, high-quality care.

Tuesday, May 23, 2017

Media Release APC 19 May 2017."The Australian Press Council has awarded its Press Freedom Medal to two outstanding individuals for their major contributions to ensuring a free and open society:Peter Timmins - Australian Open Government Partnership Networkand Michael Cameron - News Corp Australia.The 2017 Press Freedom Medals were awarded at a special ceremony in Sydney on 19 May. As well as members of the Press Council, journalists and guests from a variety of organisations attended.Peter Timmins is a well-known advocate of improved standards of transparency and accountability and Australia's leading expert on Freedom of Information (FOI) policy and privacy, as well as being a leader of the Australian Open Government Partnership Network and publisher of the Open and Shut blog.Michael Cameron is the National Editorial Counsel for News Corp Australia. He leads an in-house legal team, which he established, whose members have appeared in dozens of matters involving challenges to suppression orders, injunctions, defamation actions and so on, advocating for transparency and open justice."The purpose of the Australian Press Council is to promote responsible journalism to inform the Australian public and support effective democratic institutions. This year's winners have been exemplary in their tireless pursuit of the critical principle that citizens have a right to know, and so governments, and other important public and private institutions, must operate in an open and transparent manner," said Chair Professor David Weisbrot."Although the Press Council did not set off with this intention, this year's Press Freedom Medal winners prove the point that free speech and press freedom are not only reliant on brave and capable editors and journalists, but also on lawyers, activists and others who fight to preserve and extend these freedoms."Michael Cameron said: "I'm honoured to accept this award on behalf of the editorial legal team at News Corp Australia, whose tireless work enables the publication of articles that would be otherwise be barred by our unduly secretive courts system and plaintiff-friendly defamation laws. Special thanks goes to Larina Mullins, our senior litigation counsel, who has appeared at close to 100 suppression hearings in the last three years."Peter Timmins said: "This is a great but unexpected honour, a tribute to the many individuals and organisations including the Press Council that believe strongly in open, transparent and accountable government and joined the network to seek to ensure the government lives up to its Open Government Partnership commitments. Pursuing reform to improve our democracy is a never-ending journey."The Press Council has awarded Press Freedom Medals in earlier years, but it was reserved for people affiliated with the organisation. It was decided last year to revitalise the award and open it up to people who, through their work as journalists, legal practitioners, community activists or advocates, help ensure the preservation of free speech, press freedom and open and transparent government.In May 2016, Kate McClymont of Fairfax Media and Paul Maley of News Corp Australia received the first of the medals awarded under the new criteria, to great acclaim.Read the award citations here."

Wednesday, May 10, 2017

The appropriation for the Office of Australian Information Commissioner in the 2017-18 Budget is $10.368 million, down from $10.618 million. (An 'efficiency dividend' counts fora reduction of $160,000.) Total funds available in 2017-18 (counting funding available from previous years and other revenue): $19.345 million compared to $19.045 million in 2016-17.

The average staffing level,75 is unchanged.

In the three 'out years' appropriations drop to $10.265 million, $8.999 million and $9.042 million.

For outcomes measurement purposes the office functions are lumped together in a single outcome in the Portfolio Budget Statement with budgeted expenses at $14.4 million ($14.988 million in the current year) for

"Provision of public access to Commonwealth Government information, protection of individuals’ personal information, and performance of information commissioner, freedom of information and privacy functions."

The office has extra responsibilities coming in February 2018 when mandatory data breach notification requirements will extend to all entities covered by the Privacy Act. Currently notifications are voluntary other than whereMy Health Records and eHealth are concerned.

As in previous years you have to wonder about performance measures(pp 251-252) that set 12 months as the target for dealing with some matters. For example

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.